Clinton to bypass Senate, tap Lee President will use congressional recess to fill civil rights post

WASHINGTON -- President Clinton has decided to take advantage of the congressional recess to appoint Bill Lann Lee to the Justice Department's top civil rights post, bypassing Republican critics in the Senate who have blocked the nomination, aides said yesterday.

White House officials said the president plans to make the announcement about the "recess appointment" either Monday or Tuesday. Presidential aides were busy yesterday alerting Republican Senate leaders, some of whom warned of retaliation if Clinton acts to circumvent the prerogatives of the upper body in Congress.

The conflict over Lee's nomination centers on affirmative action, which has become a leading issue in the nation's discourse on race relations. Lee, a liberal Democrat, has long promoted the use of racial and gender preferences in employment and education, most recently in his post as a a top lawyer with the NAACP. Conservatives in the country and in the Republican-controlled Senate believe that the time has come to end such preferences.

The White House has embarked on a public relations blitz intended to rally support for the 48-year-old Lee, a Chinese-American with a compelling personal story. Lee's father was an immigrant who ran a laundry in New York, where he worked long hours to put his son through the best colleges. Today, Lee is widely respected across the political spectrum in Los Angeles, where he has worked, even by those he has opposed in court on racial preferences cases.

Yesterday morning, Lee appeared on NBC's "Today" show in an effort to allay fears that he is a radical, out of step with the mainstream American public.

"I am unequivocally opposed to quotas," he said. "They are wrong, illegal. I have supported affirmative action that's consistent with what the law is."

Lee dismissed the notion that he would be in a position to make policy as assistant attorney general for civil rights.

"The job is a law enforcement job," he said. "We have civil rights laws in this country that are on the books, that have been passed by bipartisan majorities of the Congress."

Senate Republicans on the Judiciary Committee, where Lee's nomination stalled because he was one vote shy of a majority, disagree with Lee's characterization of the job and of his own views.

They maintain that many federal affirmative action practices on the books, such as minority "set-asides" in housing or procurement, in fact amount to quotas. Moreover, some Republicans argue that Lee's predecessor, another NAACP lawyer named Deval Patrick, sought consistently to expand affirmative action and the reach of the federal government in enforcing it.

Shared views

Clinton insists that he has the right to appoint someone who shares his view that affirmative action is still necessary to remedy racial inequalities.

Senate Republicans counter that it is a quite proper use of their constitutional role of providing "advice and consent" to reject a nominee they believe is out of touch with the Supreme Court and the majority of Americans.

At the White House, irritation is directed mostly at Sen. Orrin G. Hatch, the Utah Republican who chairs the Judiciary Committee and whose opposition to Lee was crucial in holding up the nomination in that committee, and at Majority Leader Trent Lott, who refused to press Hatch into sending the nomination to the full Senate for a vote.

" 'Advice and consent' doesn't mean that individual senators can block consideration because they don't like the political philosophy of the nominee sent forward by the president," Mike McCurry, Clinton's spokesman, said yesterday. "On the [Senate] floor, it's pretty clear that the votes are there."

If Clinton does bypass the Senate by appointing Lee now, while Congress is in recess, Lee would serve for only one year, until Congress recesses in 1998. The civil rights establishment has been united in calling for Clinton to do just that.

Consequences

But some senators from both parties warned that there would be a dear price to pay for bucking the Senate on such an important post.

"As always, when you do something like this, there will be consequences," warned Sen. Chuck Hagel, a Nebraska Republican. "It is not conducive to some overall important agenda items the president wants to work with Congress on."

Hatch, noting that Clinton has many more appointments to come, cautioned that a recess appointment would be "a serious mistake."

But McCurry said the president was not worried about such threats.

"He doesn't imagine that the Republican leadership of the Congress is that lame-brained," McCurry said. "If they would try to retaliate by blocking every nomination, I think there would be a firestorm. I doubt they would be that dumb."

Criticism of the planned presidential appointment was not limited to Republicans. Sen. Robert C. Byrd, a West Virginia Democrat who is perhaps the staunchest defender of Senate tradition, warned Clinton in a letter last week not to appoint Lee in this fashion.